The opinion of the court was delivered by
— There is but one point which we ai’e called on to consider. Henry Picking executed the bond on which suit is brought, with the present defendant as his surety; and the defence is, that in consequence of a request which he made to Deardorf to proceed against Picking, &c., he, Hildebrand, is discharged from his liability. The plaintiff gave in evidence a judgment to the April Term, 1824, on a note,- with warrant of attorney from Henry Picking to Jacob Hildebrand, dated the 30th of March, 1824; Fieri Facias, and money made to the amount of one hundred and eighty-one dollars and ninety-nine cents; and then offered to prove, that the note was executed by Henry Picking in the absence of Jacob Hildebrand, and that Henry Picking gave it to Samuel Picking, the witness, who is also a witness to the note; and further, offered to prove what Picking said at the time, was the consideration of the note, and what monies it was intended to secure Hildebrand: That it was brought to the office by the witness, and judgment entered; it was then delivered to the said Hildebrand by the witness: That Hildebrand proceeded on the said judgment, and collected between two and three hundred dollars. This evidence was rejected, because it was the declarations of Picking in the absence of Hildebrand, not under oath, and which Picking was competent to prove. The defence of Hildebrand, resting on his character of surety, the evidence offered, was pertinent to the issue, because, if Hildebrand received the money on account of his suretyship, he did not stand in the situation of a surety, about to pay money without consideration, but must be considered a principal to that amount. The note itself, does not show the object of giving it. This must be made out by testimony aliunde, and this may well be done, by the declarations made at the time the transaction took place. I look
Judgment reversed, and a venire facias de novo awarded.